USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 27
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City of New Orange are by the good zeal and industry of the burghers so far completed as to be now on the eve of perfection, when this City shall be in such a state of defence that it will be capable (under God) of resisting all attacks of any enemies"; therefore, the schouts, schepens and militia captains were, upon notice, to see that all militia gather at Fort Willem Hendrick, "on penalty that all who will be found negligent therein shall be declared traitors and perjurors, and conse- quently to be proceeded against as enemies, or be punished with death and confiscation of all their goods, as an example to others."
About ten days later each of the Dutch towns sent a mag- istrate and its militia officer to Fort Willem Hendrick by command, to confer with Governor Colve and his Council as to plans for mobilization. Those who attended the conven- tion are named in Chapter XII; the delegates from Bergen were Schout Claes Arentse Tours and Captain Caspar Stein- mets. All matters were arranged; and the provisions made indicate that the attacking force would have to be strong to overcome the resistance of the Dutch militia, marshalled, or made examples of, by the willing and determined magistrates. But a peace treaty made in Europe made all the provincial plans of no avail.
The above Bergen illustration demonstrates two facts con- nected with jurisprudence in New York during the Dutch period : That to the end of Dutch rule in the province the gov- ernment leaned on the magistracy when in trouble; and that public matters rested largely upon the shoulders of the mag- istrates. Moreover, it shows that the government exercised care in choosing the magistrates and selecting the schouts. Therefore, one might with confidence assert that the municipal courts of the Dutch period were not of low standard. It seems clear that the magistrates were chosen from the leading men of the community, citizens known "by their conversation and demeanor" to be "honest, intelligent persons" well fitted for
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the responsibilities of judgeship, and responsible also in mate- rial things, as "owners of real estate." The status and function of the schout were very like those of the stipendary magistrate of the municipal courts of the existing British judicial system, the stipendary magistrate being a professional man, graduate of law, who sits with the local magistrates, the justices of the peace, and guides them in interpreting the law, with which they, as men of business, are not expected to be very familiar.
PART TWO
THE ENGLISH PERIOD Judicial Status of New York, 1664-1776
CHAPTER XVII. THE CONFLICTING LAND TITLES .* Claims to Sovereignty by England, France, Holland.
As the English viewed the situation, the territory occupied by the Dutch of New Netherland for a half century rightly belonged to the English. Indeed, they looked upon the Dutch as mere squatters. True, the terms of surrender of New Amsterdam to the English in 1664 seemed to contradict such a thought, for the articles of capitulation stipulated that "the Dutch here shall enjoy their own customs concerning their in- heritances ; that no judgment that has passed any judicature here shall be called in question; that all inferior civil officers and magistrates shall continue as now they are (if they please) until the customary time of new elections, and then new ones to be chosen by themselves, provided such new chosen magistrates shall take the oath of allegiance; and that all differences of contracts and bargains made before this day by any in this country shall be determined according to the manner of the Dutch." It seems that these guarantees were never deliberately repudiated by the Duke of York's gov- ernment ; "on the contrary, the Dutch law continued to be administered by Dutch methods, and in the Dutch language, in certain of the purely Dutch towns, like Albany and Esopus,
*AUTHORITIES-Smith's "History of New York"; Scott's "The Courts of the State of New York"; Redfield's "English Colonial Polity and Judicial Administration, 1664-1776," "History of Bench and Bar of New York," 1897; Fowler's "Organization of the Supreme Court, Albany Law Journal," Vol XIX ; Fowler's "History of Real Estate in New York," in "Bradford's Laws"; "Memorial History of New York"; Biddle's "Memoir of Cabot"; Werner's "Civil List and Constitutional History of the Colony and State of New York"; Chester's "Legal and Judicial History of New York"; "The Duke of Yorke's Book of Laws, Commonwealth of Pennsylvania" (1879) ; Bryant's "History of the United States"; Brodhead's "History of the State of New York"; Eastman's "Courts and Lawyers of Pennsylvania"; Francis Parkman's "Pioneers of France in the New World."
C.&L .- 19
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until the reoccupation of the province by the English in No- vember, 1674, after the reconquest and occupation by the Dutch since August, 1673"; and, had these privileges and this recognition been incorporated or even referred to in the treaty of Westminster, February 9-19, 1674, by which New Netherland finally passed to the English, the status of Dutch holders of landed estate would have been clearer; but inasmuch as the treaty contained no express reservation in favor of the guar- antees of 1664, it was considered to have nullified them.1 At least the English so viewed the situation; and this attitude strengthened the broader claim which made English common law paramount in the American colonies.
The basis of English rule of the province of New York was: first, the royal patent of the English king, Charles II, to his brother, James, Duke of York, dated March 12, 1664, (old style) ; second, Colonel Richard Nicolls' commission
I. So late as 1759, Lieut .- Gov. Cadwallader Colden wrote: "The Dutch of this province, it is probable, think the articles of surrender are still in force and that any breach of them is a piece of injustice to them, and there, among other things, they may, in their own minds, justify themselves in carrying on the illicit trade with Holland, in opposition to the Laws of Trade, which has been carried on from New York for many years." He then argues against any such assumption. (N. Y. Hist. Soc. Coll., 1868 series, p. 168). This was a fruitful subject for hot debate in the province for many years. On November 9th, 1674, the Duke's Deputy Governor confirmed, by proclamation, "all former grants, privileges and all estates legally possessed by any under the Duke of York, before the late (Dutch) government," which the Dutch claimed was only in accordance with the law of post-liminy, under which the intervening conquest operated merely to suspend, not to extinguish their rights. On the other hand, it was argued that there had been no conquest; that the Dutch ships had no thought of attempting the conquest of New York when, in August, 1673, they came in under Staten Island; but only to take in wood and water, knowing that there was not sufficient force there to hinder them, but that the Dutch inhabitants treason- ably told the Dutch commodore of the absence of the Governor and a greater part of the garrison up the river, and of the defenceless condition of the city, and invited him to consent to take it, which he did without firing a gun; that having voluntarily and without force renounced their allegiance to the Eng- lish crown and submitted anew to Holland's sovereignty, "they forfeited without doubt all privileges that they could claim by the articles of sur- render." (Colden, Ibid, 184), Smith's "History of New York," 1814 ed., p. 61, n. has the following : "In New York, the right of post-liminy was disregarded and perhaps unknown."
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from the Duke to act as his deputy governor ; third, the proc- lamation of Nicolls, addressed to the inhabitants of Long Island, West Chester and Staten Island, from New Utrecht Bay, and dated August 18, 1664, (old style) ; fourth, the terms of capitulation before referred to.2
"To fairly comprehend the judicial status and political situation of New York under the English, we must adapt international law of that period to the fundamental elements
2. But the judicial status of New York, while under the British crown, is not determined by the terms of the Dutch surrender, nor by the fact of its territory being ceded by the Dutch government to the English king by the two successive treaties of Breda (July 21-31, 1667) and Westminster (Feb. 9-19, 1674). The question of such status, under the rule of international law, involves a larger survey of the field than this; and although after vex- ing our courts for several generations, it has probably now been laid to rest as having no determining value in the discussion of legal rights; yet, as it must always arise in any attempt, however slight, to trace the history of our jurisprudence, a brief statement of the matter is pertinent.
To know what original common law of New York was, and to trace its development to the present time, one must learn what changes have taken place in its sovereignty; so that, from a lawyer's point of view, it may become important to know whether, at a particular period, the seat of the sovereignty of New York was in London, or at the Hague; for, by an ancient fiction of law, the sovereign is regarded as the sole owner and lord para- mount of all the land of his kingdom, and its dependencies, individual holders taking title from him, though no grant of his is provable by any record or otherwise; and by another conceit of jurists, he is the fountain of justice and the author, mediately or immediately, of the law of the land, so that no law or ordinance, as law, can obtain in any part of his dominions without his consent, expressed or implied. The ultimate sovereignty of this territory had been claimed by Great Britain, France, and by the United Provinces of the Netherlands. The French king founded his title to northern New York on the fact that his subjects had, first of Europeans, ascended the St. Law- rence and its tributaries, including Lake Champlain, and had explored and occupied their shores. In like manner, the Netherlands claimed all the country lying between the Connecticut and Delaware rivers, and the land drained by them, upon the alleged fact of their having been the first of Eu- ropeans to ascend these rivers, and others intermediate from the sea, and to explore and settle their shores. On the other hand, the English king's title was based on the ultimate fact of Cabot's discovery of the continent in 1497, under the commission of Henry VII, followed in due time by actual occu- pation at different points on the seacoast by English subjects under Crown grants, prior in point of time to any occupation of contiguous territory by the Dutch, who were consequently regarded as mere interlopers, tres- passers and squatters by the English of New England and Virginia, between whom they had wedged themselves. The English government had protested to the government at the Hague against this unwarrantable invasion of Eng-
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of English polity and administration as above outlined," writes Henry W. Scott, in his work, "The Courts of the State of New York." "This political problem, worthy of the genius of Edmund Burke, can be solved by no ill advised and super- ficial consideration of the conflicting principles impressed on the new world by two nations so dissimilar in their traditions, institutions and aspirations." Not yet, even, has the Dutch impress passed out of American life; and it would now seem
lish territory from time to time, both under the monarchy and the com- monwealth, ever since the year 1614, but for one reason or another, easily comprehended when the domestic history of England for the first half of that century is considered, had not found it convenient or politic to vindicate the British title until 1664, shortly after the restoration of the monarchy.
According to a contemporary historian, "there is nothing more per- plexing than the delicate relations, in history, of cause and effect, whether in the events or in the recorders of them. There seems to be nothing to check dependent progress, if we travel back over the annals of the world. Who would have thought that when Henry VII of England gave to the Venetian, John Cabot, and his three sons, the right to discover western lands, he would have determined the fact of the fee of the roadway of the New York Bowery, as really happened in other days." Such is not quite the fact ; but the records of our courts, both of the province and of the State, abound with cases calling for the judicial determination of property rights of great value, not only in highways, in rivers and streams, but inheritances, which were supposed to depend upon whether the Dutch government was ever vested with the territorial sovereignty of this State, as against England, and, therefore, whether the laws and ordinances of that government, promul- gated here during its forty years of occupation, ever had any force or validity as law, and so, surviving the English occupation of 1664, still control the use and enjoyment of those rights. In examining these records one knows not which to admire most : the persistent efforts of successive gen- erations of lawyers to convince the Court that the matter at bar was gov- erned by the Dutch and not the English law, or vice versa, because the one or the other was the law of the sovereign of the land when the particular right arose-or the ingenuity of the judges who, generally speaking, have succeeded in dodging the question by finding some less interesting and quite commonplace solution of the controversy. At bottom these forensic con- tests are attempts to establish what was the original common law of New York ;-- was it the common law, and applicable statutes of England, existing in England at the time of the occupation in 1664, or was it something more or different? If the reduction of the Dutch was a conquest, and England took "title by conquest" as understood by the law of nations, which is a part of the Anglo-American common law, the change of sovereigns from Dutch to English did not ipso facto, change the system of law theretofore established, or affect existing property rights or incidents of tenure, but the same remained after the conquest, and inured to the benefit of every suc- cessor in interest of the original Dutch grantee, unless expressly abrogated
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that it never will, having now existed, with at times quite obvious strength, for more than two and a half centuries after the Dutch in America had become governmentally benighted by the transferrence of their former domain, New Netherland, to the English.
France, England and Holland in the seventeenth century asserted claim to what is now New York territory. The French claim was based on the early exploration and settle-
by the conqueror. On the other hand, if the English military expedition, which compelled the surrender of the Dutch province, and the submission of is inhabitants to the sovereignty of Great Britain, did not affect "a con- quest," but at most a forcible entry upon her own territory, in vindication of her own anterior title and sovereignty, as well founded by her title and sovereignty to Massachusetts and Virginia, then the Dutch law, ordinances and customs never had any validity, as law, and ceased, instanter, on the entry of the English. So, too, if the king's original right of preemption in the soil be conceded, his deed of conveyance, before actual entry, was good in law, and the Duke acquired a perfect title.
As to the effect of the English occupation, ipso facto, to displace Dutch law existing here, by introducing English law, it is to be borne in mind that, up to this time, all of England's colonies originated in immigration ; not one of them was acquired by conquest, with the doubtful exception of the Spanish island of Jamaica. In her long subsequent career of conquering and annexing French, Spanish, Portuguese and Dutch colonies, in all quar- ters of the globe, she left them their own laws intact. Hence, in Guiana, in the Cape of Good Hope, and in Ceylon, each afterwards acquired by conquest from the United Netherlands, the Roman-Dutch law as it prevailed in Holland at the time they were respectively conquered, is still at the bottom of their jurisprudence. But in the case of New York, that law, except as the articles of surrender expressly allowed it to survive in certain par- ticulars, was never recognized by any English or provincial court, or by crown lawyers as having any operation here, as law, after the surrender, or as governing any of the incidents of land tenure acquired in the province before that date. Ever since then, both before and after the Revolution, the courts of this State appear to have ignored the fact of the Dutch occu- pation, or, when called on to consider the legal consequents of that occupa- tion upon our jurisprudence, have hopelessly divided on the question, whether New York was to be considered, in law, as acquired by conquest, or on the other hand was, like Massachusetts or Virginia, an English possession by original right, into which the common law and the statutes of the realm then in force, so far as they were applicable to the condition of the province. followed the surrender as certainly as they followed the first settlement of the other English colonies to the east and south of it. The difference between a conquered or ceded territory, and a plantation made by immigra- tion and settlement, on a previously uninhabited territory, or only inhab - ited by aborigines, is an important factor in determining the question, in
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ment of the River St. Lawrence, and the explorations of Samuel de Champlain in northern New York. Verrazzano seems to have made his voyage, in 1524, in the interests of the King of France, though one historian3 was of opinion "that this voyage, if made at all, was made in the service of Henry the Eighth of England." But Cartier's voyages of 1534 and 1535, the second of which carried him well into the Hochelaga River (St. Lawrence), and as far up that river as the site of Montreal, were certainly not made in English interests. The subsequent operations of French expeditions, down to that of 1609, when Champlain, came within one hundred and fifty miles of meeting Henry Hudson in the wilderness depths of New York State, gave strength to French contentions that, by right of discovery and settlement, French sovereignty should be supreme in North America. Holland's claim found its origin in the discovery of the Hudson River by Henry Hudson in 1609, and subsequent exploration by Dutch navi- gators and traders, and actual effective colonization ; but their title was not strengthened by the outcome of boundary dis- putes between New England colonies and New Netherland, prior to the granting of charter to James, Duke of York and Albany.4 On the other hand, the English claim to the North
English jurisprudence, of what law governs the one or the other. As to the original right of England to what is now New York, as against the Neth- erlands on the one hand and France on the other, diverse opinions have been expressed by judges, law writers and historians, which the curious in such matters may find interesting .- See Redfield's "English Colonial Polity and Judicial Administration, 1664-1776," "History of Bench and Bar of New York"; Fowler's "Organization of the Supreme Court," Vol. XIX of "Albany Law Journal"; also Fowler's "History of Real Estate in New York," and introduction to "Bradford's Laws," and the same writer's chap- ters on the "Constitutional History of New York State in the Memorial History of New York "
3. Piddle, "Memoir of Cabot," 275.
4. The Colony of Plymouth was planted in 1620, under a patent issued by King James I. In 1631, the Earl of Arundel, President of the Plymouth Company, granted to Robert, Earl of Warwick, the country from Narra- gansetts along the shore, forty leagues, and westward to the Pacific Ocean. Connecticut River, however, after its discovery by Block in 1614, was periodically and exclusively visited by Dutch traders for many years. In
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American Continent was based on Cabot's discovery in 1497, under commission from Henry VII, of what now constitutes North America. In 1501 Henry VII issued a patent to col- onize the New World ; but the project was not carried further. However, both the French and the English had colonies along the Atlantic coast prior to the coming of Dutch colonists ; for Dutch colonization of New Netherland cannot be deemed to have begun before 1623, when the Walloons were brought over from Holland. The English colonies were established under crown patents, which left no room for Dutch coloni- zation, save at the expense of one or more of the proprietary companies. Therefore, the protestations of the English col- onies to the English Government, and of the latter to the Dutch authorities "against this unwarrantable invasion of English territory" were numerous. However, the internal affairs of England and the political situation in Europe pre-
1632, the arms of the States General were erected at the mouth of the river, at a spot called Kievit's Hoeck (now Saybrook), purchased from the natives for the West India Company. In 1633, Director Van Twiller purchased an extensive and beautiful table land, called the Connittekock, lying on the west bank of the river, some sixty miles from its mouth. . . . Upon this table land a trading post was established, called "The House of Good Hope." The Governor of Massachusetts Bay speedily protested against this acquisi- tion, as an encroachment upon English rights. Director Van Twiller re- sponded, under date of October 4, 1633, claiming rightfulness of possession by purchase. Meantime, the Colony of Plymouth sent out an expedition, which landed about a mile above Good Hope (Hartford) and the English thereafter rapidly settled at various points in Connecticut and upon Long Island, which was also claimed under patent from Earl Stirling. These questions devolved upon Director Stuyvesant to adjust. He accordingly appointed two commissioners, Thomas Willett, a merchant of Plymouth, and George Baxter, employed by Stuyvesant as his Secretary. The Commis- sion fixed the boundary line on Long Island, from the westernmost part of Oyster Bay straight to the sea; on the mainland, the point of departure was on the west side of Greenwich Bay, about four miles from Stamford, the line to run thence up into the country twenty miles, provided it did not come within ten miles of the North River. This was called the Hartford Boundary Treaty of 1650. The States General delayed its confirmation so long as to lose its benefits; and then it was nullified by Connecticut. The English pressed hard upon the Dutch in Westchester, while Massachusetts, under a claim that her patent extended indefinitely westward, proposed to settle a colony on the upper waters of the Hudson, and insisted upon the right to navigate the river in order to reach her alleged possessions. Fort Good
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vented resolute action by the English to enforce their claim to sovereignty in New York until the year 1664.
In the meantime, many land transactions had been made between the Dutch Provincial Government and settlers within the territory they claimed and occupied. And the French had made vast grants of land on both sides of Lake Champlain. These, after the English entered into possession-for genera- tions thereafter-gave rise to many land suits, in which title was derived on the one side from the Dutch or the French, and on the other urged through English dominion. "The
entire question turned on the point whether England had an- nexed this territory by prior discovery, or whether by con- quest and invasion, it had been reduced to an English de- pendency. If the former contention were tenable, the Eng- lish common law was paramount, and had, from the date of discovery, been the law of the land. If, however, it be con-
Hope was sequestered by the General Court of Hartford, by an act passed April 6, 1654.
After the restoration of Charles II, John Winthrop the younger was sent by the General Court of Hartford as an agent of that colony to Eng- land, with instructions to procure a new charter from the King. New letters patent were accordingly issued in April, 1662, confirming the bound- aries of the original patent, with enlarged privileges. It gave to the pat- entees one hundred and twenty miles from the Narragansett River along the coast "toward the southwest, west, and by south," and from that line west- ward in its full breadth to the South Sea (Pacific Ocean). The new patent covered not only Long Island, but also all northern New Netherland. For two years Stuyvesant resisted these pretensions to the best of his ability, but was finally glad to accept a compromise, to the effect that there should be mutual forbearance, the Dutch and English towns to be free respectively from interference from either government. This left the English in undis- turbed possession of all they had gained by their aggressions. Under the new charter, the colony of Connecticut bought of the Indians all the country lying between Westchester and the North River, including Spuyten Duyvil Creek, which had been purchased by the Dutch fifteen years before.
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